Nicolas Morales v. Stuart Sherman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLAS Z. MORALES, No. 17-56304
Petitioner-Appellant,
D.C. No.
v. 2:17-cv-04384-
BRO-AGR
STUART SHERMAN, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Submitted January 9, 2020 *
Pasadena, California
Filed January 30, 2020
Before: Paul J. Watford, Mark J. Bennett, and
Kenneth K. Lee, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 MORALES V. SHERMAN
SUMMARY **
Habeas Corpus
The panel reversed the district court’s judgment
summarily dismissing, as an unauthorized “second or
successive” petition, Nicolas Z. Morales’s 2017 habeas
corpus petition challenging his 2009 California attempted-
robbery conviction and three-strikes sentence.
The district court dismissed Morales’s 2012 habeas
petition as untimely. In 2016, the state trial court granted
Morales’s petition for relief in light of Proposition 47 – a
ballot initiative, approved by California voters in 2014,
reducing certain theft offenses from felonies to
misdemeanors – and issued an amended abstract of judgment
reflecting the reclassification of grand and petty theft counts.
Agreeing with Morales and the State of California, the
panel held that Morales’s successful effort to obtain relief
under Proposition 47 resulted in the issuance of a new,
intervening judgment for purposes of 28 U.S.C. § 2244(b),
such that the 2017 federal habeas petition is the first petition
challenging the new judgment. The panel held that the
district court therefore erred by dismissing the petition on the
basis that the 2017 petition is an unauthorized “second or
successive” petition under § 2244(b)(3)(A), and remanded.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MORALES V. SHERMAN 3
COUNSEL
Hilary Potashner, Federal Public Defender; Margaret A.
Farrand, Deputy Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Petitioner-Appellant.
Xavier Becerra, Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Lance E. Winters, Senior
Assistant Attorney General; Michael R. Johnsen and
Stephanie C. Brenan, Supervising Deputy Attorneys
General; Office of the Attorney General, Los Angeles,
California; for Respondent-Appellee.
OPINION
PER CURIAM:
In 2009, petitioner Nicolas Morales was convicted in
California state court of one count of attempted robbery, one
count of grand theft, and two counts of petty theft, among
other offenses. The state trial court sentenced him to
35 years to life on the attempted robbery count under
California’s three-strikes law, two years’ imprisonment on
the grand theft count and one of the petty theft counts, and
six months’ imprisonment on the other petty theft count,
with those sentences to be served concurrently with the
sentence on the attempted robbery count. Morales did not
pursue a direct appeal; he later unsuccessfully sought state
post-conviction relief.
In 2012, Morales filed a petition for writ of habeas
corpus in federal court. His petition challenged the
sufficiency of the evidence supporting his attempted robbery
4 MORALES V. SHERMAN
conviction, as well as the trial court’s refusal to dismiss the
prior-conviction allegations that led to his being sentenced
as a three-strikes offender. The district court dismissed his
petition with prejudice on the ground that it was untimely.
In 2014, California voters approved Proposition 47, a
ballot initiative that, as relevant here, reduces certain theft
offenses from felonies to misdemeanors when the value of
the property taken does not exceed $950. Cal. Penal Code
§ 490.2(a); see People v. Buycks, 422 P.3d 531, 535 (Cal.
2018). The initiative authorizes retrospective relief for
offenders convicted, prior to its enactment, of felonies that
would now be classified as misdemeanors. An offender
eligible for such relief may petition the court to recall the
original sentence and to resentence him as a misdemeanant.
Cal. Penal Code § 1170.18(a). If the court grants the
requested relief, the scope of its resentencing authority
extends to all counts, even those not affected by Proposition
47. Buycks, 422 P.3d at 549–51.
In 2015, Morales filed a petition under California Penal
Code § 1170.18(a) asking the state trial court to reduce his
grand and petty theft convictions from felonies to
misdemeanors. In 2016, the court granted his request. The
court reclassified Morales’ grand and petty theft convictions
as misdemeanors, recalled his original sentence, and
resentenced him to 180 days in county jail on each of those
counts, with the sentences again to run concurrently with his
undisturbed 35-years-to-life sentence on the attempted
robbery count. The court then issued an amended abstract
of judgment reflecting the reclassification of the grand and
petty theft counts.
In 2017, Morales filed another federal habeas petition,
which raised the same two claims he asserted in his 2012
federal habeas petition. The district court concluded that the
MORALES V. SHERMAN 5
petition constituted an unauthorized “second or successive”
petition under 28 U.S.C. § 2244(b)(3)(A), a provision that
bars district courts from entertaining a second or successive
petition unless its filing has first been authorized by the court
of appeals. On that basis, the court summarily dismissed
Morales’ petition without reaching the merits.
On appeal, Morales argues that the district court erred
because his petition does not qualify as a second or
successive petition under § 2244(b). A petition can be
deemed “second or successive” under § 2244(b) only if it
challenges the same state court judgment challenged in an
earlier petition. See United States v. Buenrostro, 895 F.3d
1160, 1165 (9th Cir. 2018). Thus, when a new judgment
intervenes between the filing of two federal habeas petitions,
a petition challenging the new, intervening judgment is not
considered “second or successive.” Magwood v. Patterson,
561 U.S. 320, 341–42 (2010). Morales contends that his
successful effort to obtain relief under Proposition 47
resulted in issuance of a new, intervening judgment, and that
his 2017 federal habeas petition therefore was not second or
successive. The State agrees with Morales on this point, and
so do we. 1
Our circuit has previously held that “a petition is not
second or successive when there is an amended judgment
and the petition is the first one following that amended
1
The State contends that our court should reconsider Wentzell v.
Neven, 674 F.3d 1124 (9th Cir. 2012), which held that a petition
challenging a new, intervening judgment is “not second or successive
even if the petition challenges only undisturbed portions of the original
judgment.” Gonzalez v. Sherman, 873 F.3d 763, 768 (9th Cir. 2017)
(citing Wentzell, 674 F.3d at 1126–28). As the State acknowledges,
however, we have no authority as a three-judge panel to reconsider
whether Wentzell was correctly decided.
6 MORALES V. SHERMAN
judgment.” Gonzalez v. Sherman, 873 F.3d 763, 768–69
(9th Cir. 2017). That is precisely the situation we have here.
Morales’ successful petition for relief under Proposition 47
resulted in the reclassification of his grand and petty theft
convictions as misdemeanors. That reclassification rendered
his original prison sentences on those counts invalid, which
explains why the court recalled his original sentence and
resentenced him as a misdemeanant to 180 days in county
jail. As was true in Gonzalez, because these actions “led to
a change in the sentence and judgment, the abstract of
judgment had to be amended as well so as to reflect that
change.” Id. at 770.
Issuance of the amended abstract of judgment
represented the issuance of a new, intervening judgment for
purposes of 28 U.S.C. § 2244(b). Morales’ 2017 federal
habeas petition is the first petition challenging that new
judgment, so it is not an unauthorized “second or successive”
petition under § 2244(b)(3)(A). The district court erred by
dismissing the petition on that basis.
In light of our disposition, we need not address whether
Morales’ unsuccessful effort to obtain relief under a different
California ballot initiative, Proposition 36, also resulted in
issuance of a new, intervening judgment for purposes of
§ 2244(b).
Morales’ unopposed motion to take judicial notice of
various court transcripts and documents (Dkt. No. 25) is
GRANTED.
REVERSED and REMANDED.